DoD Biodiversity Conservation Handbook
Chapters:Chapter 1Chapter 2Chapter 3Chapter 4Chapter 5Chapter 6Chapter 7Chapter 8Chapter 9Chapter 10Chapter 11IntroductionCase StudiesAcknowledgements
Chapter 3: Legal and Policy Background; By J. Douglas Ripley; Edited by Fred Powledge

Part 2. Important Legislative Initiatives

The first section of the chapter discussed current policy issues, such as encroachment and ecosystem management. This section deals with the more important legislative initiatives during the past decade relating directly to the management of natural resources on military lands or waters, or to the impacts of military operations on natural resources on public or private lands or waters. While many of these initiatives were requested by the DoD, others were instigated by the Congress without specific requests from the DoD.

Sikes Act Improvement Act (1997)

The Sikes Act
The Sikes Act is named after Rep. Robert L.F. Sikes, Democrat representing Northwest Florida, home to Eglin AFB and other major DoD installations. It was enacted in 1960 "to promote effectual planning, development, maintenance, and coordination of wildlife, fish, and game conservation and rehabilitation in military reservations." (See http://epw.senate.gov/sikes.pdf.)

Enacted in 1960, the Sikes Act provides the authority, and defines the responsibilities, for the management of natural resources on military lands. In its original form the Sikes Act mainly addressed public access to military lands for hunting and fishing activities. Over the years the act has been significantly strengthened, and its scope expanded, to the point that it now represents a comprehensive law mandating the conservation of all aspects of natural resources on military lands.

The most significant amendment, known as the Sikes Act Improvement Act of 1997, was enacted with the strong support of the U.S. Fish and Wildlife Service and the Association of Fish and Wildlife Agencies (representing state fish and game agencies). Major provisions of the Sikes Act Improvement Act of 1997 include:

  • Mandatory requirement for all DoD installations with natural resources to prepare a comprehensive Integrated Natural ResourcesManagement Plan (INRMP).
  • The INRMP must be prepared in cooperation with the U.S. Fish and Wildlife Service and the pertinent state fish and game agency.
  • Public comment is required on the INRMP.
  • The INRMP must be implemented.

Subsequent modifications to the Sikes Act, mainly through provisions specified in the Defense Authorization Act, have addressed a number of issues, ranging from providing disabled veterans with access to hunting and fishing programs on military, to control of invasive species, and compliance with the Endangered Species Act. The more important of these provisions are discussed below.





The vermillion flycatcher (top) at Fort Huachuca, Arizona, and the yellow-throated warbler (bottom) at NAS Patuxent River, Maryland. Protection of migratory birds is a major objective of military natural resources programs. (Photos: Arlene Ripley)

Migratory Bird Treaty Act

Although the DoD has a long history of positive contributions to the conservation of migratory birds (http://www.DoDpif.org/), the Navy was sued successfully regarding the "unintentional take" of birds at a bombing range in the Western Pacific on the island of Farallon de Medinilla. The Migratory Bird Treaty Act has many provisions for the regulated "intentional taking" of migratory birds. Examples include waterfowl hunting, depredation of nuisance species, or birds that pose a safety hazard. However, the act has no provision for the "unintentional taking" of migratory birds. That is, if birds are taken by accident or in conjunction with some activity (e.g. military operations) whose primary purpose is not the taking of birds, the law has no provision to issue a permit for such activities. Hence, there would be no legal way to conduct military operations if any birds were taken in the process. To address this problem and the legal decision against it at Farallon de Medinilla, the Navy sought and achieved legislative relief regarding "unintentional take" during military readiness operations in the FY 03 Defense Authorization Act. A Final Rule reflecting this was published on 28 February 2007 in the Federal Register.

This change allows the military to obtain permits for the "unintentional take" of a migratory bird if it is in support of a military readiness operation. The specific details of this new procedure are spelled out in a memorandum of understanding between the DoD and the U.S. Fish and Wildlife Service (USFWS), as required by E.O. 13186, Migratory Birds that was signed on 31 July 2006. These procedures contain significant safeguards to ensure that the taking of birds is minimized when the new rule is used and that conservation measures are employed to compensate for the losses that may occur (https://www.denix.osd.mil).

On 3 April 2006, the Assistant Deputy Under Secretary of Defense issued a memorandum providing specific guidance on the implementation of the MOU (https://www.denix.osd.mil).

Endangered Species Act

Long considered a federal agency leader in the conservation of endangered species, the DoD has implemented a comprehensive program to ensure compliance with the Endangered Species Act. For that reason, there was considerable concern when the U.S. Fish and Wildlife Service began a court-ordered effort to designate critical habitat for all federally listed species. The concern in the DoD with the new USFWS effort was that declaring critical habitat would add a new administrative burden on military installations with no added benefit to listed species. The DoD argued that it was already providing extensive protection to listed species through its formal consultations with the USFWS and the conservation measures specified in installation INRMPs. It therefore argued that designating military land as critical habitat would only add an additional compliance and consultation burden on the DoD while not enhancing protection for listed species. The DoD achieved relief from the provision in the FY 2004 Defense Authorization Act (Section 318) (see http://www.DoD.mil/DoDgc/olc/docs/2004NDAA.pdf). This legislation granted the USFWS specific authority to exempt DoD lands from the designation of critical habitat provided:

  • A comprehensive and approved INRMP was in effect.
  • The INRMP specifically addressed the conservation of the species under consideration.
  • The INRMP was implemented.

Marine Mammal Protection Act

Harrassment
Under the Marine Mammal Protection Act, "harassment" is one component of a larger prohibition known as a “taking” and consists of two levels:

Level A Harassment: Action with the potential to injure marine mammals or marine mammal stock in the wild (e.g. ship strike, underwater explosion).

Level B Harassment: Action with the potential to disturb marine mammals or marine mammal stock in the wild by causing disruption of behavioral patterns. (e.g. sonar, aircraft overflight).

The Navy actively sought and achieved through the 2004 Defense Authorization Act (Section 319), a clarification of the definition of "take" under the Marine Mammal Protection Act. Specifically, this provision modified the meaning of Level B Harassment of a marine mammal when caused by military activities. The net result of this change was to increase slightly the harassment threshold and thereby reduce the number of occasions in which the military services would need to consult the National Marine Fisheries Service regarding their testing or training operations (http://www.DoD.mil/DoDgc/olc/docs/2004NDAA.pdf).

Invasive Species

The FY 2004 Defense Authorization Act (Section 311-C) also contained legislation establishing a pilot program for the control of invasive species on military lands in Guam. This effort is mainly focused on the control of the brown tree snake and enhances earlier legislative efforts to address this serious issue.8



Security forces at Vandenberg AFB, California, use horses for patrols in sensitive habitats and rough terrain. (Photo courtesy of U.S. Air Force)

Incompatible Land Use

Some of the most significant recent environmental and readiness legislation concerns efforts to fund conservation easements adjacent to military lands. As discussed above, the DoD and the services worked with Congress to define a statutory authority to address encroachment. The result was that Congress, in Section 2811 of the National Defense Authorization Act for FY 2003, provided the military with an important new tool for using partnerships to prevent incompatible land use. This new authority allowed DoD to enter into agreements with private conservation organizations or state and local governments to cost-share acquisition of land or interests in land to preserve valuable habitat and limit incompatible land use.

In FY 2005, Congress appropriated $12.5 million to the Deputy Under Secretary of Defense (Installations & Environment) to allocate funds to military service conservation buffer projects at seven DoD installations. In fy 2006, Congress appropriated $37 million, which was applied towards projects at 22 installations. Since then, the program has continued to grow in scope and funding.

  • Funding. The FY 2007 appropriation bill provided $30.1 million for the REPI Program. Of those funds, the DoD provided the Army with $16.4 million for 17 individual projects. The Navy received $5.4 million for three separate projects. The Marine Corps received $6.7 million for three projects while the Air Force received $2.2 million for three projects.
  • Scope of Authority. In FY 2006, the scope of the geographic applicability of the buffer authority was expanded from the original "in the vicinity of a military installation" to "in the vicinity of, or ecologically related to, a military installation or military airspace." These changes allowed the DoD to work to protect land and habitat of interest even if it is many miles distant from the "fence line" of any military base.
The authority in 10 USC 2684A represents a significant step forward in encouraging open communication and collaboration between the military and a wide array of stakeholders, leading to successful conservation/compatibility partnerships focused on common objectives. These partnerships allow DoD to make clearcut gains in achieving conservation and protecting the military mission by leveraging funds to accomplish the protection of vital lands and habitats (see https://www.denix.osd.mil).

Proceed to Chapter 4 - Too Close for Comfort: Encroachment on Military Lands





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About This Chapter's Author
J. Douglas Ripley is an environmental consultant and Lieutenant Colonal, USAF (Retired).

Literature Cited
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